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The Lover that Dare Not Sheath His Mien

This article is a polemic. It speaks about unprotected sex practices relevant to the gay community and for men-who-have-sex-with-men (MSM). The point of this article is not to serve as an apologetic, nor to serve as a health warning, but to unpack the motivations that shape people’s sexual behavior. This article does not advocate for unsafe sex practices, but rather to address the silence on on a highly taboo subject. The longer this conversation remains unspoken, the greater the numbers who take uninformed risks.

What is being discussed here refers not just to individuals who occasionally conduct unsafe sex, but also individuals that live it as part of their lifestyle (even integrating it into their identity), whether they are HIV+ or not, and even people who actively seek HIV infection (bug-chasing). It’s a complicated subject, and the only way to speak to it is to consider the convergence of cultural, sexual, medical, and even historical influences, rather than the individuals themselves.

… there is a limited ability for the criminal system to offset risky sexual behaviours. A stronger and more effective approach would be to address the matter principally as a public health issue and one probably best supported by community development.

The Criminalisation of HIV Transmission: Global Comparisons

Across the world, there are a range of laws relevant to the transmission of HIV, which all turn around the ability to provide informed consent. For the purposes of this article, I am going to limit the exploration of this issue to Anglo-American contexts as it makes for an easier point of comparison. Generally speaking though, most jurisdictions regard an act that either deliberately or recklessly transmits HIV, and so the issue hinged on whether an individual knowingly (whether intentionally or not) contributed to transmission. There are three main contexts that I would like to compare to give a sense around how we ascribe criminality to these matters: Australia, Canada, and the UK. I choose these three nations as a comparison, because they all share a very similar judicial systems, but also because they have inherited the British colonial legacy.

Australia generally regards HIV transmission under both criminal law and public health law, but specifically in New South Wales, the intentional transmission of HIV a criminal act considered grievous bodily harm (GBH), and there are additional requirements to disclose HIV status to potential sex partners.

Canada has some similarities, though lacking any specific HIV statues. However, there are several cases that have set precedents for how these issues are ascribed. R. v. Mabior, (2012) SCC 47 attributes criminal liability to individuals for failing to disclose their serostatus, and despite being subject to significant antiretroviral therapy and despite intermittent condom use, had not transmitted HIV in that period. The ruling found that these actions constituted sexual assault, due to the lack of informed consent on the part of his partners. This, combined with earlier rulings, has established a precedent that means a combination of failing to disclose serostatus and failing to use safer sex measures constitute a sufficiently fraudulent act to vitiate the consent given, transforming the act into sexual assault.

In similar vein, the UK has seven convictions on record for HIV transmission, which pertain to the reckless infliction of grievous bodily harm. What is interesting in the UK situation is that the numerous cases provide a series of comparisons, making determinations around different thresholds of consent. The UK courts have variously found defendants guilty for reckless behaviour in situations where they knowingly were diagnoses as being HIV+ but failed to inform or take protective measures (much like in Canada and Austalia). In one of the two cases where the issue went to appeal, the judgement opined that there may be different standards of consent for those within a committed relationship, compared to those engaging in casual sex. In the other case, there was a specific distinction made between assuming some general risk with casual unprotected sex, and the informed risk relevant to the disclosure of HIV-status.

The Culpability of Desire

Since the birth of clinical medicine, medical thought has sought to produce a philosophy of the human subject and how one should live, but this internal humanism mutates through the new medical technology. This medicalisation was a rendering of natural phenomena into a medical and authoritative framework. It increases the scope of human phenomena encompassed by medicine through a paradigm of disease and treatment. Thus, medicine is discursive and empowers medical professionals as authorities and patients as dependants with little valued medical input. The consequence being the ontology of the human became increasingly produced through medical imperatives. This discourse turns upon a dichotomy of rendering issues into being either normal or pathological, which subsequently frames the issue of public health as risk management, using statistical analyses of probabilities to construct a notion of morality and health. This framework consequently is co-opted by legal thinking, which merely reinforces the issue of legal personhood as being an embodied phenomenon, which simply embeds legal responsibility onto bodily acts.

What we can see on the comparison of these issues is the significance of informed consent to risk, however the tendency to categorise the act as GBH means that consent may not qualify as a sufficient defense, even informed consent. The comparison can be made to R v Brown (Anthony), where consensual sadomasochism resulting in significant injury still constituted a criminal act that was not vitiated by the consent of the participants, nor the lack of complaints filed by the same.

Considering these are criminal matters, particularly considering that in some instances the State intervenes directly with the private conduct between individuals, it is making a determination around the management of HIV transmission as having a public interest.

What we see here is an attempt by three comparative legal systems in relation to determining culpability, or legal responsibility. On these matters, Kane Race seeks to frame how and why these judiciaries and legislatures apportion responsibility for HIV transmission. In particular he notes that despite advances in biomedical research on HIV transmission, there is an increasing tendency for these bodies to confer culpability on discrete individuals, often signified through bodily acts. Specifically, the more the virus becomes framed in the context of medical research, the more that such bodies attribute responsibility to bodies (and thus the person embodied within). That there is insufficient distinction in these matters between the legal person and the body they inhabit is a direct result of the medicalisation of this matter, and one that erodes the complex socio-cultural impetus underlying seual relations, as the primary vector for transmission.

Considering these are criminal matters, particularly considering that in some instances the State intervenes directly with the private conduct between individuals, it is making a determination around the management of HIV transmission as having a public interest. This is where it gets really complicated, because while it is easy to conceive of HIV as a public health concern, it is so intertwined with the individuals who are HIV+ and their sexual practices that the socio-cultural dimension cannot be set aside.

Of interest, Buris points to this, stating that the experience of being HIV+ is viscerally experienced, and that the criminalisation and stigmatisation of HIV are so closely aligned. Not only can being HIV+ dislocate people from their existing social networks, but that the criminalising of HIV transmission creates a strong disincentives to neither test nor disclose. In his work, he show how HIV exposure is not deterred by criminalisation: one third of high-risk sexual subjects never test, preferring not to know their status and thereby making them feel absolved of social and legal responsibilities. Many HIV+ persons fail to disclose their status to primary partners, with only one-half disclosing to casual partners.

Subcultures of Risk and Dissent

Shernoff once wrote a seminal text on the subject called Without Condoms, and in it he explored the psychology surrounding this issue. As a sexual behaviour, barebacking is contextual, to the point that it mostly describes a specific experience of unprotected sex. It is heavily taboo and mostly refers to male-to-male sex that is casual and/or anonymous.

He noted that the emergence of barebacking emerged out of a tension between gay civil rights movements embracing sexual hedonism as statement of sexual liberation, and a slow and resentful reaction to accept the reality of the health risk epidemic created by HIV. Specifically, he highlighted a number of factors that inform the desires and choices regarding barebacking. These can include aversions to condom use or other safe sex, the ‘sanctity’ of a committed relationship, alienation from mainstream gay identities that produce a desire for deviant experiences, internalised homophobia, fatalism of eventual infection, and substance use.

In building on this another scholar named Joffe, in her work ‘Intimacy and Love in Late Modern Conditions: Implications for Unsafe Sex Practices‘, identified a strong correlation between unprotected sex practices within the formulation of committed relationships between same-sex male partners. Primarily, this signified the emotional ties experienced in this transition: she cited studies that suggested that condom use signified a given act of sex act as public and impersonal, while the lack of condom use construed the act as personal and intimate. In this way, she argued that the condom has come to signify a barrier against intimacy.

Specifically, she stated that these interconnections do not describe an aversion to condom use because of a sense of boundedness or limitation, but rather a desire for the emotional tie viscerally experienced in seminal transmission, which heralds the achievement of emotional intimacy.

Specifically, she stated that these interconnections do not describe an aversion to condom use because of a sense of boundedness or limitation, but rather a desire for the emotional tie viscerally experienced in seminal transmission, which heralds the achievement of emotional intimacy. That this experience can be so highly desired, is one of the factors Joffe attributes to overriding our instinctive drive for the preservation of our own health. Moreover, she notes that attitudes towards sex inform condom use overall. Where sex signifies an expression of love and intimacy, than the discontinuing condom use signifies the establishment of trust, which transforms the relationship from the casual to the stable, while continued use undermines the sense of exclusivity and commitment.

Joffe attempts to place this issue in the context of modern society, where there are increasing levels of anonymity and environmental variations: the continuous flux of stimuli intensifies emotional states, which subsequently sanctifies our private and intimate spaces. That is, the private arena becomes authentic, and the public arena creates alienation, meaning that the establishment of authentic relationships through intimate bonds becomes a means for us of establishing mental and emotional integrity in the face of this onslaught.

The Stigmata of Faceless Men

Drawing from both Shernoff and Joffe, and moving beyond the context of relationship building, there is still a large arena where risk-taking occurs, and while some of these practices are attempts to confer intimacy on anonymous encounters, there is a much more complicated range of motivations at play. Effectively, we are talking about a large range of social and personal issues that feed into sexual appetites, which consequently over-ride preservation instincts. Some are inherently self-destructive and nihilistic, while others merely result in self-harm. Ironically, one of the greatest social pressures that intersect with these issues is the stigmatisation barebacking because of its direct association to HIV transmission.

A positive HIV status symbolical carries a loss of sexual liberty, and HIV+ people have frequently reported experiences of becoming dislocated from the mainstream community groups, and thereby find support and solidarity in other similarly stigmatised people. Consequently, this act of separation merely helps to reinforce risk-taking sexual behaviours into a sense of identity because it becomes the means of participation in groups that do accept them. However, group participation doesn’t account for individuals who have casual attitudes towards barebacking. As Shernoff notes, they include a various range of issues, including ambivalence towards the health implications, and fatalism experienced regarding STI infection.

Shernoff conducted a study of those who engaged in barebacking behaviours, and saw that even though a fairly large number of the men sampled were willing to risk infection, the actual number of those who intentionally sought to transmit the virus was infinitesimally small. Of those who deliberately sought to become positive their motivations were a complex tangle of conscious and unconscious motivations. In some circumstances, the anxiety experienced over infection was so intense as to be debilitating. To then proactively control the situation in which they become positive and to finally have concrete knowledge of their status gave them a sense of empowerment they lacked from the state of limbo created by uncertainty of status.

Of Biopolitics and Laws

A lot of ground has been covered in this article, ranging from the legal reasoning behind criminalisation of acts relating to HIV transmission. However, the legislation of a criminal act is a very binary one, either something is criminal or it is not. If the matter is unclear, the court system is required to produce a finding one way or the other and cannot leave the matter ambiguous. However, it does show that there are some complex social phenomena and interactions that the law has difficulty accommodating these nuances and thus defers to the reductive medical models. This means that currently, the law is framing the matter almost purely in terms of its interactions with bodies, rather than with people; while there is some tendency to recognise the agency available to people in their sex acts, it still frames the criminality of the act through the way it is embodied.

However, it is clear when the sociological and psychological dimensions are taken into account, that there exists a much broader ambit of motivations and interactions that are affecting the diversity of choices and encounters around sexual behaviour. More, that there is a limited ability for the criminal system to offset risky sexual behaviours. A stronger and more effective approach would be to address the matter principally as a public health issue and one probably best supported by community development.